Northern Ireland: 1 in 4 LGBTQ+ asylum seekers experience sexual assault in asylum accommodation

A report by Rainbow Refugees NI and Law Centre NI published on Friday revealed that LGBTQ+ asylum seekers in Northern Ireland experience serious homophobic abuse in their asylum accommodation. The report, titled “We are getting hurt,” shows that 78 percent of the study’s participants experienced “homophobic abuse or violence in or around their asylum accommodation.”

According to Rainbow Refugees NI, LGBTQ+ asylum seekers have experienced homophobic abuse such as name-calling, severe bullying, harassment and physical and sexual violence. The report further found that while victims of homophobic abuse usually report to Migrant help, Mears or the police service, the reporting process did not lead to effective results for the majority. Additionally, the research showed that the chance of being relocated after experiencing abuse is low and is mostly possible with the interference of support organizations. Moreover, the report raised concerns over the high prevalence of self-harm and suicide among abuse victims.

The organizations provided key recommendations, such as that housing provider Mears designate housing units “for the exclusive use of LGBTQIA+ asylum seekers” to guarantee safe asylum accommodations. The report also suggested that homophobic abuse response should follow racial and domestic abuse policies and therefore provide victims access to expedited relocation policy as well as suicide prevention services.

Overall, the report highlighted that LGBTQ+ asylum seekers in the UK face constant abuse in their accommodation. Migration Justice Project at Law Centre NI member Liz Griffith stated:

LGBTQIA+ asylum seekers deserve the chance to rebuild their lives and feel safe in their own homes. We are optimistic that the recommendations in this report will bring about tangible and progressive change and we look forward to working collectively with Mears, Migrant Help, and others to ensure the safety and wellbeing of LGBTQIA+ asylum seekers who have sought sanctuary in Northern Ireland.

As Pride Month nears its end, the necessity to address the serious issues the LGBTQ+ community faces around the world remains urgent. A recent report published by Ugandan LGBTQ+ advocacy organization Convening for Equality reported human rights violations against LGBTQ+ people following the passage of the country’s Anti-Homosexuality Act (AHA) 2023. Earlier in June, South Korean authorities denied the 25th Seoul Queer Culture Festival from using the Seoul Plaza, prompting discrimination accusations from the event committee.

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Namibia high court overturns law banning gay sex

Victory for LGBTQ+ campaigners who say ban contributes to discrimination and violence by police

Namibia’s high court has overturned a law that criminalised gay sex in a victory for LGBTQ+ campaigners after a number of setbacks in the battle for rights in African countries in recent years.

Namibia inherited a law banning “sodomy” and “unnatural offences” when it gained independence from South Africa in 1990. While the ban was rarely enforced, activists said it contributed to discrimination against LGBTQ+ people, including violence by the police.

More: https://www.theguardian.com/world/article/2024/jun/21/namibia-high-court-overturns-law-banning-consensual-gay-sex

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The Namibian High Court ruled Friday that the law criminalizing “sodomy” and “unnatural sexual offences” is incompatible with the right of non-discrimination guaranteed under the Namibian constitution.

In the case of Dausab v The Minister of Justice, applicant Friedel Dausab, a Namibian gay man working as an LGBTQ rights activist, stated that he endured hardship by openly living as a gay man. Thus, he decided to bring the claim in order to challenge the validity of the legislation banning sexual acts between males. These offences, which were implemented during the colonization before 1990, cover sexual acts in private and in public between male persons.

The high court agreed with Dausab and declared that the parts of laws such as the Criminal Procedure Act and the Defence Act punishing the offences of consensual sex acts between males constituted unfair discrimination, mentioning that sexual conduct between males and females as well as between females is not criminalized. Furthermore, although the respondents argued that sexual activity between males is seen as unacceptable by a majority of citizens, the court said it was not sufficient to justify the discrimination. Therefore, the court ruled, provisions criminalizing sexual activity between males infringe Article 10 of the Namibian constitution guaranteeing equality under law. The court emphasized the need for judicial review of legislation as a means to guarantee constitutional value and to protect the rights of minorities and others whose rights cannot be adequately protected.

The court’s decision was preceded Wednesday by a call from Amnesty International to protect the human rights of LGBTQ people in Namibia and to allow them to assemble and associate without fear of discrimination and attacks. Considering possible anti-LGBTQ rhetoric from faith and religious leaders in Namibia, as well as the Supreme Court’s previous judgment recognizing foreign same-sex marriages, the organization urged the authorities to avoid any more anti-LGBTQ backlash.

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On 21 June 2024, the High Court of Namibia in Friedel Laurentius Dausab vs. The Minister of Justice unanimously held that laws criminalizing same-sex relationships (so-called sodomy laws) are unconstitutional and invalid. The Court found that “common law offenses of unnatural sexual offenses” and the inclusion of the “crime of sodomy” in three statutory laws (Schedule 1 of CPA, Schedule 1 of Immigration Control Act of 1993, Section 68(4) of the Defence Act of 2002) violate the equality and anti-discrimination principle enshrined in the Constitution of Namibia. The judgment significantly advances anti-discrimination law jurisprudence in Namibia, particularly in relation to the grounds of sexual orientation and the interpretation of constitutional equality provisions.

Expanding Anti-discrimination Law Jurisprudence

The Court’s expansive interpretation of the equality clause in Article 10 has far-reaching implications for the protection of human rights in Namibia.

Firstly, the Court recognized sexual orientation as a protected ground although it is not explicitly listed as a specific ground in Article 10(2), rejecting a narrow, literal interpretation. It thus demonstrated a willingness to adapt constitutional interpretation to evolving social norms and human rights standards on sexual orientation. While the judgment doesn’t explicitly cite these standards, they likely include international human rights instruments such as the Yogyakarta Principles, United Nations Resolutions on sexual orientation and gender identity, and the growing body of comparative jurisprudence from other jurisdictions that have recognized sexual orientation as a protected ground. This approach aligns with the living tree doctrine of constitutional interpretation which holds that a constitution should be read broadly and progressively to adapt to the changing needs of society. The Court’s reasoning in this regard is particularly significant. It held that “the fact that a ground is not listed in Article 10(2) is not a license for the law to discriminate on that ground” (para. 44). The judgment thus advances a more nuanced understanding of gender discrimination by recognizing its intersection with sexual orientation. This expanded view opens the door for the recognition of other non-enumerated grounds of discrimination in future cases, potentially including grounds such as disability, age, or gender identity which are recognized in many modern constitutions like Article 9 of the Constitution of South Africa but not explicitly mentioned in the Namibian Constitution.

Substantive Equality over Formal Equality

The Court’s analysis of the rationality and legitimacy of the impugned laws demonstrates a rigorous and principled approach to the equality test under Article 10 of the Namibian Constitution. This approach significantly raises the bar for the state in justifying differential treatment and sets a precedent for future discrimination cases. The Court’s scrutiny of the purported justifications for criminalizing same-sex conduct was particularly intense. The judgment squarely addressed the question of what legitimate purpose could be served by such criminalization, asking pointedly: “What threat does a gay man pose to society, and who must be protected against him?” (para. 28). This framing of the issue compelled a critical examination of the underlying rationales for the impugned laws, moving beyond mere acceptance of historical or traditional justifications. The Court’s rejection of moral majoritarianism as a legitimate basis for discrimination is a cornerstone of this judgment and marks a significant jurisprudential development. By asserting that “the enforcement of the private moral views of a section of the community (even if they form the majority of that community), which are based to a large extent on nothing more than prejudice, cannot qualify as such a legitimate purpose” (para. 28), the Court established a crucial principle and reinforced a counter-majoritarian understanding of constitutional rights.

Moreover, the Court demonstrates a sophisticated understanding of equality that transcends mere formal equality, aligning with contemporary constitutional theory. By rejecting the Respondents’ contention that the impugned laws constitute mere differentiation rather than discrimination (para. 33), the Court implicitly embraced the concept of substantive equality. Instead of analyzing the legal distinctions in a formalistic manner, the Court considered the deleterious and prejudicial effects of the laws on gay (or queer) men, thus engaging with the laws’ practical consequences. It thereby relied on the precedent established in Müller v President of the Republic of Namibia (1999) which defined discrimination within the Namibian constitutional context as encompassing an element of unjust or unfair treatment (para. 56), reaffirming and extending a substantive approach to equality. This approach is a progressive evolution of Namibian constitutional jurisprudence, resonating with developments in other jurisdictions as well as Namibia’s binding commitments under ratified human rights treaties. These include the ICCPR, the CEDAW, and the CERD which increasingly recognize the limitations of formal equality in addressing systemic discrimination and promoting social justice.

Comparative Law as the Guiding Light

The Namibian High Court in Dausab continued the trend of relying on comparative law as a deliberative resource, similar to what was observed in the Digashu and Seiler-Lilles case. This approach reflects the growing tendency of Namibian courts to use comparative methods when addressing critical constitutional questions. In Dausab, the High Court drew upon jurisprudence from South Africa, Candana, the United Kingdom, and Ireland to form its reasoning on the decriminalization of the sodomy law. The use of comparative law in Dausab further exemplifies the “cross-fertilization” or “doctrine-swapping” approach in Namibian constitutional interpretation, where courts import and adapt legal concepts from other jurisdictions to address complex issues in their own context, while still maintaining Namibia’s unique constitutional framework, characterized by its post-apartheid origins, hybrid legal system (i.e., Roman-Dutch civil law, English common law, and Customary law), and emphasis on transformative constitutionalism. While drawing insights from other jurisdictions, Namibian courts developed a domestic jurisprudence that addresses the country’s specific legal and social challenges. This approach allows Namibia to benefit from global legal developments while maintaining its sovereign ability to interpret and apply constitutional principles in a manner that respects its distinct historical, cultural, and social realities. This “cross-fertilization” approach in Namibian constitutional interpretation could potentially enhance queer rights (and other minority rights) concerning self-perceived gender identity, same-sex marriage, surrogacy rights, or adoption rights.

Queer Rights within the Framework of the Namibian Constitution

The High Court arrived at this expansion of queer identities and their rights by squarely placing same-sex relationships within the framework of constitutional rights and philosophies, namely, constitutional morality, the right to autonomy, the right to live a dignified life, and the right to privacy.

The Court’s expansion of queer rights through the lens of autonomy is evident in several aspects of its reasoning. The Court critically questions the legitimacy of criminalizing consensual sexual conduct between adults based solely on moral disapproval. By asking “What threat does a gay man pose to society, and who must be protected against him?” (para. 28), the Court implicitly recognizes the principle of personal autonomy in intimate relationships. Furthermore, the Court’s rejection of moral majoritarianism as a basis for criminalization (paras. 29-30) strongly affirms individual autonomy.

The Court’s emphasis on dignity is particularly evident when it references the Constitution’s promise of “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family” (para. 30). By framing the issue in terms of dignity, the Court elevates the status of queer individuals to that of equal members of society deserving of respect and recognition. Moreover, by rejecting “extreme disgust and abhorrence” (para. 27) as a basis for criminalization, the Court asserts that societal prejudices cannot diminish the dignity of queer persons.

The Court’s analysis demonstrates a sophisticated understanding of the relationship between morality and law in a pluralistic society. By questioning whether the criminalization of consensual same-sex conduct can be justified solely on the grounds of “moral disapproval”, the Court implicitly recognizes the distinction between private morality (individual morality) and public law (social vs. constitutional morality). This approach resonates with the harm principle of John Stuart Mill in legal philosophy, which posits that the only legitimate basis for criminalization is the prevention of harm to others, not the enforcement of private moral views. While not as explicitly discussed as the other rights, the right to privacy is implicitly recognized throughout the Court’s reasoning. The Court’s emphasis on privacy rights in questioning laws that criminalize “consensual anal intercourse between consenting males in private” (para. 28) is a key step in decriminalization. However, this framing should not be construed as limiting LGBTQ+ expression to private spaces only. The judgment’s broader focus on equality and dignity implies that LGBTQ+ individuals should have the same rights to public expression of affection as heterosexual couples.

While legal change of course does not change society’s minds and hearts overnight, the High Court of Namibia judgment is a milestone with the potential to impact queer lives in Namibia significantly. It not only decriminalizes consensual same-sex relationships but affirms the substantive equality, dignity, and autonomy of queer individuals. By establishing a crucial legal precedent for challenging other discriminatory practices, the judgment waters the living tree of the Constitution and will help it to branch out even further.

Source: https://verfassungsblog.de/namibia-queer-rights-constitution/

Thailand legalises equal marriage in historic first for Southeast Asia

More: https://www.thepinknews.com/2024/06/18/thailand-equal-marriage-south-east-asia/

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Thailand’s senate voted by a wide margin to support a bill legalizing same-sex marriage on Tuesday. This comes after its House of Representatives voted to approve the bill in March with near unanimity. Now, the bill must receive royal endorsement by King Maha Vajiralongkorn before entering into Thailand’s Royal Gazette as law.

The bill is an amendment to section 1448 of Thailand’s Civil and Commercial Code, which currently stipulates that marriage takes place between a “man and a woman.” The amendment uses gender-neutral language to allow for the possibility of recognizing same-sex marriages.

The legalization of same-sex marriage is no surprise in Thailand, where public opinion is squarely in support of it. A 2023 Pew Research Center study found that 60 percent of Thais support same-sex marriage and only 30 percent opposed it. Nonetheless, progress on the issue has been slow. In 2021, Thailand’s Constitutional Court found that section 1448 in its current was constitutional, pushing the Thai government to change the law itself; nevertheless, it took nearly two years until 2023 for Thailand’s cabinet to approve the bill legalizing same-sex marriage. Regardless of the delay, Thailand will now be the first country in Southeast Asia, and only the third in Asia, to allow same-sex marriage.

Even if the king were to deny the bill royal assent, which would be an abnormal measure, section 146 of Thailand’s Constitution states that the National Assembly may override that refusal with the support of a two-thirds majority. Given the bill’s near-unanimous support, it would likely overcome a veto.

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Netherlands – Bill to amend the Dutch Civil Code (the 2014 Transgender Act) to be withdrawn

More: https://www.equalitylaw.eu/downloads/6084-netherlands-bill-to-amend-the-dutch-civil-code-the-2014-transgender-act-to-be-withdrawn

Study to investigate discrimination against gay and lesbian soldiers in Swiss army

Study to investigate discrimination against gay and lesbian soldiers in Swiss army

Thomas had asked sports court in Switzerland to overturn rules approved in 2022

Transgender swimmer Lia Thomas failed in her challenge against rules that stop her from competing in elite women’s races because judges ruled she did not have standing to bring the case.

More: https://www.cbc.ca/sports/olympics/summer/aquatics/lia-thomas-transgender-swimmers-court-arbitration-sport-1.7232612

US federal judge rules Florida ban on gender-affirming care unconstitutional

A federal judge ruled Tuesday that a Florida ban on certain gender-affirming care including puberty blockers and hormone therapy was illegal under the Equal Protection Clause of the US Constitution.

Florida Statute Section 456.52 banned individuals under the age of 18 from receiving puberty blockers to “stop or delay puberty in order to affirm a person’s perception of his or her sex if that perception is inconsistent with the person’s [natal] sex.” It also banned hormone therapy “to affirm a person’s perception of his or her sex” for the same reasons.

The law grandfathered in minors who were already receiving gender-affirming drugs but created new restrictions for adults who wished to begin the therapies, restricting the therapy to in-person treatment by licensed physicians. Bans on gender-affirming surgeries for minors and further restrictions for these kinds of surgeries for adults were not included in the plaintiffs’ challenge.

In his decision Robert Hinkle, a US Federal Judge for the Northern District of Florida, wrote:

The elephant in the room should be noted at the outset. Gender identity is real. The record makes it clear. The defendants, speaking through their attorneys, have admitted it. At least one defense expert has admitted it…the only defense expert who has actually treated a significant number of transgender patients.

Hinkle continued that many individuals believe that gender identity is “chosen” like “one might choose whether to read Shakespeare or Grisham.” He added that many people oppose all things related to transgender identity and are often fueled by religious beliefs, comparing people’s denial of transgender identity to the same kind of “intensity” or “animus that has attended racism and misogyny…”. He stated that:

Transgender opponents are of course free to hold their beliefs. But they are not are free to discriminate against transgender individuals just for being transgender. In time, discrimination against transgender individuals will diminish, just as racism and misogyny have diminished. To paraphrase a civil-rights advocate from an earlier time, the arc of the moral universe is long, but it bends toward justice. In the meantime, the federal courts have a role to play in upholding the Constitution and its laws.

Hinkle cited high depression and suicide rates among the transgender community and pointed out that medical intervention via treatment was only available to “adolescents or adults, never younger children.” Stressing that the ban on surgery for minors was not an issue in the case and explaining that there was no evidence in the record that such surgeries had even taken place in Florida.

The court applied intermediate scrutiny holding that the law was based on classifications of sex and gender nonconformity also finding that animus in the law against transgender individuals as another basis for heightened scrutiny.

Hinkle rejected the defense’s claim that the law was an example of the constitutional exercise of legislative power to regulate the medical industry citing animus in the legislative record. The judge pointed toward legislators who had used hyperbolic language against transgender individuals. Specifically quoting one Florida House member who referred to transgender witnesses present at the committee as “mutants” and “demons.”

Finally, the court held that the outright ban was not sufficiently related to the state’s legitimate interest in safeguarding health since the care could be appropriately regulated and a ban would cause “needless suffering” from those experiencing gender dysphoria.

Florida’s conservative led government has been aggressive in legislating against various issues relating to transgender rights including so called “don’t say gay” laws regulating the use of personal pronouns among other pronouncements from Governor Ron DeSantis to battle “woke” culture in the state.

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US appeals court upholds public school ban of student wearing transgender-critical shirt

The US Court of Appeals for the First Circuit on Sunday upheld a Massachusetts public middle school’s prohibition against one of its students from wearing a shirt with a message critical of transgender ideology. The appeals court found the prohibition to be consistent with the free speech protections of the US Constitution’s First Amendment under Tinker v. Des Moines.

John T. Nichols Middle School (NMS) has a dress code with a preface stating, “clothing … that causes distractions and inhibits learning is not allowed.” The dress code forbids “hate speech” and “imagery that target[s] groups based on … gender identity.” It also forbids “apparel that the administration determines to be unacceptable to our community standards.”

On March 21, 2023, Seventh grader Liam Morrison wore a shirt with the message “[t]here are only two genders” to NMS. The school contacted Morrison’s father and requested him to make Morrison wear more appropriate attire. Morrison’s father refused to comply and Morrison was told he could not attend class unless he stopped wearing the shirt. Morrison attempted to wear the shirt again with the message “censored” taped over the “only two” from the original message, but the school demanded him to remove it and he complied. Morrison through his father sued NMS for the shirt bans and alleged that the dress code is too vague and overbroad, violating the right to free speech protected under the First Amendment.

NMS argued at trial that the shirt ban was consistent with both of Tinker‘s restrictions and that Morrison’s dress code claims lacked standing. Tinker is a case that provided First Amendment protection for public school students to wear black armbands at school to protest US involvement in the Vietnam War. The case provided that constitutional restrictions on students’ speech in public schools are speech that “materially disrupts classwork [and] speech that involves substantial disorder or invasion of the rights of others.”

NMS also contended that Morrison’s shirt violates the rights of LGBT+ students “to feel safe in school and to be free from harassment and bullying while in school” and that the strong self-advocacy of LGBT+ students would materially disrupt classwork. The trial court’s decision supported NMS on the basis that the “rights of others” restriction applied to Morrison and that Morrison’s dress code claims would not likely succeed on the merits. The appeals court affirmed the trial court’s decision, but most notably added their support for the “materially disrupts classwork” restriction and Morrison’s dress code claims lacking standing when applied to the “community standards” rule.

In addition, the appeals court concluded that the appropriate decision-makers in deciding what would make “an environment conducive to learning” at NMS are the educators and not federal judges. Accordingly, the educators are better equipped to decide whether to enforce the dress code as they are the closest to the scene.

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